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2023 Supreme(Online)(Kar) 35861
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WP No. 107673 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
WRIT PETITION NO. 107673 OF 2017 (GM-CPC)
BETWEEN:
1.
SHRI SANGAPPA
S/O KALYANAPPA NEMAGOUDAR,
AGE: 67 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
2.
SHRI MAHADEV
S/O KALYANAPPA NEMAGOUDAR,
SINCE DECEASED BY HIS LRS,
2(A) SUSILA,
W/O MAHADEV NEMAGOUDAR,
AGE: 50 YEARS,
OCC: HOUSEHOLD WORK,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
2(B) BASAWARAJ
S/O MAHADEV NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
CHANDRASHEKAR
LAXMAN
KATTIMANI
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Date: 2023.01.14
11:27:27 +0530
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WP No. 107673 of 2017
2(C) MANJUNATH
S/O MAHADEV NEMAGOUDAR,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
2(D) VASANT
S/O MAHADEV NEMAGOUDAR,
AGE: 31 YEARS,
OCC: AGRICULTURE,
R/O: FARM HOUSE GANESH NAGAR,
MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
3.
SHRI GOUDAPPA
S/O KALYANAPPA NEMAGOUDAR,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
…PETITIONERS
(BY SRI. M C HUKKERI, ADVOCATE)
AND:
1.
SHRI SADASHIV
S/O TIPPANNA NEMAGOUDAR,
AGE: 66 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
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WP No. 107673 of 2017
2.
SHRI ALLAPPA
S/O TIPPANNA NEMAGOUDAR,
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
3.
SHRI HANAMANTH
S/O TIPPANNA NEMAGOUDAR,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
4.
SRI GANGAPPA
S/O SADASHIV NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
5.
SRI VINOD
S/O ALLAPPA NEMAGOUDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
6.
SHRI PARASAPPA
S/O HANAMANTH NEMAGOUDAR,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
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WP No. 107673 of 2017
DIST: BELAGAVI.
7.
SHRI RAMAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 74 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
8.
SHRI MALLAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 69 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
9.
SHRI ANAND
S/O SHIVAPPA NEMAGOUDAR,
AGE: 25 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
10.
SHRI PARASAPPA
S/O SHIVAPPA NEMAGOUDAR,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
11.
SHRI NAGAPPA
S/O NANDEPPA NEMAGOUDAR,
AGE: 47 YEARS,
OCC: AGRICULTURE,
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WP No. 107673 of 2017
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12.
SHRI SHRISAIL
S/O NANDEPPA NEMAGOUDAR,
SINCE DECEASED BY HIS LRS,
12(A) RAMESH
S/O SHRISAIL NEMAGOUDAR,
AGE: 37 YEARS,
OCC: AGRICULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12(B) SUMITRA
W/O BANGAREPPA MAIGUR,
AGE: 32 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: SULTANPUR,
TQ: RAIBAG,
DIST: BELAGAVI.
12(C) SUNANDA
W/O BASAWARAJ MIRJI,
AGE: 31 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HANDIGUND,
TQ: RAIBAG,
DIST: BELAGAVI.
12(D) SHIVALEELA
W/O SHRISAIL MIRJI,
AGE: 28 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HANDIGUND,
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WP No. 107673 of 2017
TQ: RAIBAG,
DIST: BELAGAVI.
12(E) SAVITRI
W/O SURESH TELI,
AGE: 26 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: METAGUDD,
TQ: MUDHOL,
DIST: BAGALKOT.
12(F) REKHA
W/O SANJU HULYAL,
AGE: 24 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: INGALAGI,
TQ: MUDHOL,
DIST: BAGALKOT.
12(G) LAKSHMI
W/O ANANDA BHUMAR,
AGE: 23 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: HULYAL,
TQ: MUDHOL,
DIST: BAGALKOT.
12(H) BASAWARAJ
S/O SHRISAIL NEMAGOUDAR,
AGE: 21 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
12(I)
MAHADEVI
W/O SHRISAIL NEMAGOUDAR,
AGE: 55 YEARS,
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WP No. 107673 of 2017
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI, TQ: GOKAK,
DIST: BELAGAVI.
12(J)
GANGAVVA
W/O JAKKAPPA NEMAGOUDAR,
AGE: 85 YEARS,
OCC: AGRIL/HOUSEHOLD WORK,
R/O: MUDALAGI,
TQ: GOKAK, DIST: BELAGAVI.
13.
SHRI SHANKAR
S/O JAKKAPPA NEMAGOUDAR,
AGE: 50 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK, DIST: BELAGAVI.
14.
SHRI MALLAPPA
S/O JAKKAPPA NEMAGOUDAR,
AGE: 48 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
15.
SHRI BASAPPA
S/O JAKKAPPA NEMAGOUDAR,
AGE: 32 YEARS,
OCC: AGRILCULTURE,
R/O: MUDALAGI,
TQ: GOKAK,
DIST: BELAGAVI.
…RESPONDENTS
(BY SRI. S C BHUTI, ADVOCATE FOR R1, R2, R4 and R5;
SRI. LAXMAN T MANTAGANI, ADVOCATE FOR R7-11, R12(A)
TO 12(J) & R13 TO 15;
R3 AND R6 SERVED)
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WP No. 107673 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO:- A)
QUASH THE IMPUGNED ORDER DATEDS ON MEMO PASSED BY
THE
TRIAL
COURT
ON
18.08.2015
AND
04.07.2017
RESPECTIVELY PENDING ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE, GOKAK IN O.S.NO.179/2013 VIDE
ANNEXURE-F; B) DIRECT THE TRIAL COURT TO PERMIT THE
PLAINTIFFS/PETITIONERS TO ADDUCE THEIR EVIDENCE AND
CROSS-EXAMINE
THE
DEFENDANTS
CONSEQUENT
UPON
QUASHING THE ORDERS ON MEMO DATED 18.08.2015 AND
04.07.2017 RESPECTIVELY.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
In a partition suit, a defendant who seeks partition and separate possession of his share by paying Court fee is in the position of a plaintiff and can continue the suit if the plaintiff is not continuing the suit in their interest.
Headnote:
PARTITION SUIT - WITHDRAWAL OF SUIT - TRANSPOSITION OF DEFENDANTS AS PLAINTIFFS - [Smt.Gouramma V/s Nanjappa and others, ILR 2001 KAR 4853]
Fact of the Case:
Plaintiffs instituted a suit for partition and separate possession of their alleged share in the suit schedule properties against the defendants. Subsequently, the plaintiffs filed a memo seeking dismissal of the suit as not pressed. Defendants No.7 to 15 requested to transposing themselves as plaintiffs and to continue the suit. The trial Court passed the impugned order dated 04.07.2017 transposing defendants No.7 to 15 as additional plaintiffs No.4 to 12 in the suit.
Finding of the Court:
The trial Court was fully justified in accepting the request of defendants No.7 to 15 that they are entitled to be transposed as plaintiffs and passed the impugned order.
Issues: Whether the trial Court was justified in transposing defendants No.7 to 15 as plaintiffs and continuing the suit.
Ratio Decidendi: In a suit for partition, each defendant is entitled to seek partition and separate possession of his share by paying the specifically prescribed Court fee for such purpose. When a plaintiff seeks partition, he is seeking partition not only against the defendants but also against his co-plaintiff, if any. Similarly when a defendant seeks partition, the relief is sought not only against the plaintiffs, but against the co-defendants also. In other words, each party to a suit for partition, whether a plaintiff or defendant, who seeks the relief of partition and separate possession by paying separate Court fee, is in the position of plaintiff with reference to all other parties to the suit.
Final Decision: The petition is dismissed.
This petition is directed against the impugned orders
dated 18.08.2015 and 04.07.2017 passed in O.S.No.179/2013
on the file of Principal Senior Civil Judge, Gokak.
Heard learned counsel for the petitioners and
learned counsel for the respondents and perused the material
on record.
The
material
on
record
discloses
that
the
petitioners-plaintiffs instituted the aforesaid suit for partition
and separate possession of their alleged share in the suit
schedule properties against the respondents-defendants. In the
said suit, respondents No.7 to 15 were arrayed as defendants
No.7 to 15 and stated that they also entitled to share in the suit
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schedule properties and submitted that they had paid requisite
Court fee. Subsequently, when the matter was posted on
18.08.2015, the petitioners-plaintiffs filed a memo seeking
dismissal of the suit as not pressed. Respondents No.7 to 15
requested to transposing themselves as plaintiffs and to
continue the suit. Subsequently, when the petitioners-plaintiffs
insisted on orders to be passed on the aforesaid memo dated
18.08.2015, defendants No.7 to 15 reiterated the request for
transposition pursuant to which the trial Court proceeded to
pass the impugned order dated 04.07.2017 transposing
defendants No.7 to 15 as additional plaintiffs No.4 to 12 in the
suit. Aggrieved by the impugned order passed by the trial Court
accepting
the
memo
of
the
plaintiffs
and
transposing
defendants No.7 to 15 as plaintiffs No.4 to 12, the petitioners-
plaintiffs are before this Court by way of present petition.
Learned counsel for the petitioners submits that so
long as the plaintiffs do not want to continue the suit, the only
option available to the trial Court was to dismiss the suit as not
pressed and the question of permitting respondents-defendants
No.7 to 15 to be transposed as plaintiffs would not arise and
consequently, impugned order deserves to be set aside.
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Per contra, learned counsel for respondents-
defendants No.7 to 15 submits that having regard to the
undisputed fact that the suit was one for partition and
separation possession in which all parties occupy the status of
plaintiff and defendant and in the light of the judgment of the
Division Bench of this Court in the case of Smt.Gouramma
V/s Nanjappa and others, ILR 2001 KAR 4853, when the
plaintiffs sought to withdraw their claim as not pressed, it was
the duty of the trial Court to call upon the defendants to state
as to whether they have no objection for suit to be dismissed
as not pressed or transpose them as the plaintiffs upon their
request and consequently the trial Court was fully justified in
passing the impugned order permitting defendants No.7 to 15
to be transposed as additional plaintiffs to the suit. It is
therefore submits that there is no merit in the petition and
same is liable to be dismissed.
The law relating to transposition of defendants as
plaintiffs in a suit for partition when the plaintiffs intend to
withdraw their claim by way of settlement or otherwise is no
longer res-integra in the light of the judgment of the Division
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Bench of this Court in the case of Smt.Gouramma supra
wherein it is held as under:
“8. Therefore, the question that arises for
consideration is, whether in a partition suit, the plaintiff
can be permitted to withdraw the suit, or whether a suit
can be dismissed as settled out of Court between
plaintiff and some of the defendants, when other
defendants have also sought partition and separate
possession.
9. At the outset it should be noticed that the
reason given by the Trial Court for rejecting the
objection of first and fifth defendants to the memo of
the plaintiff for dismissing the suit, is wholly erroneous.
The Trial Court has held that defendant's prayer for
partition is a counterclaim; and that a counter-claim is
permissible only in a money suit and not in a partition
suit; and therefore the counter-claim was not tenable.
Firstly, when a defendant in a suit for partition seeks his
or he
